Published on 7 November 2022
FIFTH SECTION
Applications nos. 30182/17 and 32155/17
Nina Fedorivna BLAGOVESHCHENSKA against Ukraine
and Zoya Mykhaylivna BORYSENKO against Ukraine
lodged on 11 April 2017 and 24 April 2017 respectively
communicated on 21 October 2022
SUBJECT MATTER OF THE CASES
Both applications concern an alleged medical malpractice in a private clinic.
On 20 November 2004 the applicants underwent an eye surgery in a private clinic, in the course of which the applicants’ eyes became infected. Owing to the ensuing complications, the applicants became almost completely blind. Twenty other patients, who had undergone eye surgery in the same clinic on the same day, had suffered similar complications. On 22 November 2005 the clinic’s license was revoked at its own request.
The applicants and other affected patients raised the issue of medical negligence before the investigative authorities, seeking criminal prosecution of the medical staff concerned. The criminal investigation was instituted on 30 December 2004 but suspended in July 2008 since it appeared impossible to identify the person responsible for causing harm to the victims. On 5 September 2016 the pre-trial investigation was resumed and has been pending since. It was established during the investigation that the irrigating solution used during the surgeries could have been the possible source of infection. However, it appeared impossible to establish the way in which the infective agent had got into the product.
The applicants complain that their health has been severely damaged as a result of the negligently conducted surgery and that the pre-trial investigation has been lengthy and ineffective. They rely on Articles 3 and 13 of the Convention. The Court, being the master of characterisation to be given in law to the facts of the cases, considers that the substance of the applicants’ complaints may also raise an issue under Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Is Article 3 of the Convention applicable in the circumstances of the present cases? If so, did the State authorities in the present case comply with their positive obligation under Article 3 or Article 8 of the Convention to protect the applicants’ right to physical integrity? Has the investigation into the allegations of medical negligence been effective? Is the length of the criminal proceedings on account of the medical negligence in breach of the positive obligation at issue, also given the statutory limitation period for the medical negligence crime?
2. Have the applicants complied with the rule of exhaustion of domestic remedies in respect of their complaint under Article 3 and 8 of the Convention? In particular, could the applicants institute civil proceedings seeking redress on account of the alleged medical malpractice? If so, would the civil forum be effective in the light of the measures taken within the criminal proceedings and in view of the fact that those criminal proceedings have been pending for more than twelve years? The Government are requested to provide examples of domestic case law.
3. Is the fact that no final decision has yet been adopted in the criminal proceedings at issue contrary to the applicants’ right to an effective remedy under Article 13 of the Convention in conjunction with Articles 3 and 8 thereof?
The Government is invited to provide the Court with the case-file of the criminal proceedings instituted on account of the alleged medical negligence, showing the measures which have been taken in order to effectively examine the complaints raised by the applicants.